Mikisew Cree leaders vow to be heard after Supreme Court rules against duty to consult

The federal government does not have a duty to consult with Indigenous groups prior to introducing legislation, Canada’s top court ruled Thursday.

But the 7-2 Supreme Court decision, ending a court challenge launched in 2012 by the Mikisew Cree First Nation against two pieces of legislation they argued infringed on treaty rights, only strengthens the resolve of Indigenous groups to be consulted prior to new laws being introduced.

“This is not the end, this is only the beginning because we’re going to rally,” former Mikisew chief Steve Courtoreille, who initiated the 2013 court action, said at a Thursday news conference in Edmonton.

“So what does reconciliation mean to the rest of Canada, to the federal government? All the nice words are meaningless, don’t mean nothing … I ask you to reach out and stand together as we should.”

The Mikisew Cree had argued that two omnibus bills introduced in 2012 by the Conservative government affected the band’s treaty rights by changing waterway and environment protections, threatening its members’ right to hunt, trap and fish.

The band wants Indigenous groups consulted prior to the drafting of legislation but the federal government argued that would threaten the role of Parliament.

“In 2013, Mikisew Cree asked a simple question, was it right that the government of Canada could completely overturn the environmental protection regime that had been in place for decades in favour of a regime which reduced protections, changed processes … without even having the decency to have a conversation with the First Nations who were going to be affected by this,” said JFK Law Corp.’s Robert Janes, the lawyer who led the court challenge.

“And remember, this is the system that has brought us the fiasco that was the Northern Gateway project, it’s the system that failed to get Energy East approved, it’s the system that led to the failure of the Kinder Morgan project … sadly it’s a system that has not advanced reconciliation with First Nations.”

The court ruling, added Janes, means more projects will be derailed.

“Perhaps the better approach would be to say why not consult at the beginning when the rules are being made, when the laws are being drafted rather than to leave us struggling with these fights with each and every project … as they are brought forward by industry and provinces.”

The ruling helps clarify the steps the federal government must take in upholding the Crown’s obligation to act honourably in its dealings with Aboriginal groups.

As part of the ruling, Justice Malcolm Rowe wrote that the move would “encroach on parliamentary privilege. It would involve the courts in supervising matters that they have always held back from doing.

But Courtoreille — who arrived in Edmonton Thursday morning with high hopes the ruling would unanimously fall in the band’s favour — said that First Nations women behind the 2012 Idle No More movement will be integral to gathering international support for better Indigenous consultation.

“I’m very sad, very disappointed that we have to go internationally to fight this battle if we have to.”

The court’s decision comes as the federal government debates legislation on reforming the National Energy Board which is beginning a second round of court-ordered consultations on the Trans Mountain pipeline expansion. The Federal Court of Appeal quashed approval of the project over what it deemed inadequate consultation with Indigenous groups and failure to properly assess the effect of increased B.C. coast tanker traffic.

Mikisew Chief Archie Waquan said while he is a “proponent of Trans Mountain,” proper consultation with affected communities like his is non-negotiable.

“We as Indigenous groups or nations in Canada always have to prove that we belong here and in the end it costs a lot of funds to take anything to task within the court system,” said Waquan of the approximate $500,000 expense of the five-year court battle.

“I’m very disappointed but I’m not saying this is the end, we have more to accomplish,” said Waquan. “What we want to do is make sure we are part of the Canadian mosaic; let us benefit alongside you, let us walk shoulder to shoulder, hand in hand.”

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